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Miller v. Gizmodo Media Group, LLC

United States District Court, S.D. Florida

August 27, 2019

JASON MILLER, Plaintiff,
v.
GIZMODO MEDIA GROUP, LLC; et al., Defendants.

          ORDER

          CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

         THIS CAUSE came before the Court on Defendants, Gizmodo Media Group, LLC (“Gizmodo”) and Katherine Krueger's (“Krueger['s]”) Motion for Summary Judgment [ECF No. 155] submitted with their Statement of Undisputed Material Facts (“Defs.' SOF”) [ECF No. 156]. Defendants have submitted the Declarations of Krueger [ECF No. 157], Timothy Marchman [ECF No. 158], and Aleksander Chan [ECF No. 159] in support of the Motion.[1] Plaintiff, Jason Miller, filed his Response [ECF No. 172] as well as his Statement of Facts (“Pl.'s SOF”) [ECF No. 171], to which Defendants filed a Reply [ECF No. 177] and Counterstatement to Plaintiff's Additional Facts [ECF No. 178].

         The Court has carefully considered the Amended Complaint [ECF No. 5], the parties' submissions, the record, and applicable law. Because there are no material facts in dispute that could defeat Defendants' affirmative defense raising the New York fair report privilege, codified in section 74 of the New York Civil Rights law, the Motion is granted, and summary judgment will be entered by separate order.

         I. BACKGROUND

         This is a defamation case. (See generally Am. Compl.). Plaintiff is a political strategist and commentator. (See Defs.' SOF ¶¶ 2, 39). Krueger is the managing editor of a news website, Splinter. (See id. ¶ 52). Gizmodo is Splinter's corporate parent. (See Am. Compl. ¶¶ 19-20). Plaintiff alleges Defendants defamed him by publishing an online article (the “Article”) containing false accusations made against him in a confidential court filing and inaccurately characterizing the accusations. (See generally id.). The material undisputed facts follow.

         A. The Facts

         Plaintiff worked on campaigns, in the administrations of numerous pro-life politicians, and as a political commentator on CNN. (See Defs.' SOF ¶¶ 2, 39).[2] The events at issue in this case began in the summer of 2016, when Plaintiff served as a Senior Communications Advisor for the 2016 presidential campaign. (See id. ¶ 4). In August 2016, Plaintiff hired Arlene Delgado (“Delgado”) to work as a spokesperson for the campaign. (See id. ¶ 11). Delgado is a Harvard Law School graduate and member of the New York bar. (See id. ¶ 8). She has appeared on numerous radio and television shows and has been published in multiple news outlets. (See id. ¶ 9).

         In October 2016, Plaintiff and Delgado began an affair. (See id. ¶¶ 15-16). The affair resulted in Delgado's pregnancy. (See id. ¶ 25). In July 2017, Plaintiff and Delgado's son was born. (See id. ¶ 41). Articles about the affair, birth of Plaintiff and Delgado's son, and subsequent custody dispute have appeared in publications including the Atlantic, Talking Points Memo, the New York Post, the Daily Mail and Vanity Fair. (See id. ¶ 43).

         1. The Family Court Action

         In July 2017, Plaintiff initiated a custody proceeding in Miami-Dade County, Florida Family Court (the “Family Court Action”). (See id. ¶ 42). On September 14, 2018, Delgado filed a document entitled “Mother's Supplement to Mother's March 2018 Motion for Court to Consider Psychological Evaluation of the Father” (the “Supplement”) in the Family Court Action. (See id. ¶ 44; Krueger Decl., Ex. 9, Supplement [ECF No. 157-9]). The parties dispute whether the Supplement has been sealed since it was filed or whether it is publicly available.[3] (See Defs.' SOF ¶¶ 45-50; Pl.'s SOF ¶¶ 45-50).

         In the Supplement, Delgado accuses Plaintiff of having an affair with and impregnating “Jane Doe” years earlier, slipping her an “abortion pill, ” and killing her unborn child without her consent. (Supplement 2-3).[4] The Supplement states, in part:

         In summer 2018, [Delgado] was informed as follows:

1. In 2012, Mr. Miller, while working for Jamestown Associates, was working closely with the firm's Florida clients.
2. As part of this, Mr. Miller spent significant time in Orlando, FL.
3. Evenings with clients and colleagues sometimes entailed steakhouse dinners followed by strip clubs and/or patronage of escorts for some of the participants.
4. During one such evening, Mr. Miller and other colleagues/clients visited Rachel's Gentleman's Club, a strip club in Orlando (which also has a West Palm Beach location).
5. At the time, Mr. Miller was already married to his wife (whom he married in July 2008) and had a 4-year-old daughter (who was born in late 2008).
6. Mr. Miller met a stripper that evening, which [sic] will be referred to herein as “Jane Doe” (Mother has individual's full name).
7. Mr. Miller had sexual intercourse with Jane Doe and continued a sexual relationship with her for some unknown period of time.
8. Jane Doe became pregnant.
9. Shortly thereafter, according to Jane Doe, Mr. Miller visited her apartment with a Smoothie beverage.
10. Unbeknownst to Jane Doe, the Smoothie contained an abortion [p]ill.
11. The pill induced an abortion, and Jane Doe wound up in a hospital emergency room, bleeding heavily and nearly went into a coma.
12. The unborn child died.

(Id. (alterations added; emphasis in original)).

         The Supplement identifies Delgado's sources for the information. (See Id. 4-11). It states Delgado initially discovered the accusations from a man she met on Twitter, who told Delgado he received the information about Jane Doe from “multiple” sources whom he believed were “credible.” (Id. 7 (quotation marks in original; emphasis removed)). He cautioned the account was “unverified by him” and he was “unable to vouch for its veracity.” (Id.). The Supplement states a private investigator contacted Jane Doe, but she “was not interested in speaking out.” (Id. 3).

         The Supplement further states Delgado notified a journalist after learning of the accusations, and the journalist (1) contacted Jane Doe via Facebook, spoke to her, her friends, and her family; (2) traveled to Florida to investigate the story (see Id. 9); (3) “confirmed the account directly with the victim herself”; and (4) stated Jane Doe's instant reaction was “‘Yes, that happened to me - how did you know? Who told you?'” (id.).

         According to the Supplement, the journalist told Delgado he had “all [he] need[ed]” to write the story (id. (alternations added)), but the journalist had not published a report on the story due to his editors' concern “Jane Doe would backtrack” (id. 10-11). The Supplement states the journalist “continues working on the report.” (Id. 11).

         2. The Splinter Article

         On September 21, 2018, Krueger received a message from a source who informed her Delgado filed the Supplement in the Family Court Action. (See Defs.' SOF ¶ 55). The source sent Krueger a copy of the Supplement. (See id.). Krueger confirmed with Delgado the document was an authentic copy of the Supplement. (See id. ¶¶ 56, 82; Krueger Decl. ¶ 53).

         Krueger reviewed the Supplement in full and prepared to write a report on it. (See Defs.' SOF ¶ 59; Krueger Decl. ¶ 56). She intended to write “a straight forward report on a filed court document” and to “closely track the allegations made in the Supplement.” (Kreuger Decl. ¶ 57). Prior to drafting, Krueger sent an electronic message to her editor, Timothy Marchman, stating, “I think I'm mostly gonna let [the allegations] speak for themselves? And just hew closely to the doc as filed . . . .” (Id., Ex. 10, Krueger/Marchman Electronic Correspondence [ECF No. 157-10] 7 (alterations added)). Marchman responded, “[this is] one to play straight.” (Id. (alteration added)).

         Krueger drafted the Article. (See Defs.' SOF ¶ 80; Krueger Decl. ¶ 59). It was then edited by Splinter Editor-in-Chief Aleksander Chan and Deputy Editor Jack Mirkinson. (See Defs.' SOF ¶ 85; Krueger Decl. ¶ 59).

         On September 21, 2018, Splinter published the Article, titled “Court Docs Allege Ex-Trump Staffer Drugged Woman He Got Pregnant With ‘Abortion Pill, '” on its website. (See Krueger Decl. ¶ 59; id., Ex. 1, Article [ECF No. 157-1]). The opening paragraph of the Article states:

The ongoing custody battle between former Trump campaign operatives Jason Miller and A.J. Delgado has taken another nasty turn: In an explosive new court filing, Delgado's legal team alleges that Miller - prior to their [sic] own high-profile extramarital romance - carried out an affair with a woman he met at an Orlando strip club. Additionally, the court documents claim, when the woman found out she was pregnant, Miller surreptitiously dosed her with an abortion pill without her knowledge, leading, the woman claims, to the pregnancy's termination and nearly her death.

(Article 2). The Article provides background information on Plaintiff and Delgado's affair. It includes hyperlinks to articles in the Atlantic and Page Six about the relationship, child, and custody battle. (See id. 3-4). The Article states the Supplement was “filed in Miami-Dade Circuit Court on Sept. 14 and obtained by Splinter” and “Delgado confirmed the document's authenticity to Splinter but declined to comment further.” (Id. 3).

         The Article describes how Delgado obtained the information she includes in the Supplement. It states Delgado initially learned of the story from a man she sought out on Twitter, after he “tweeted cryptic messages at Miller referencing the Orlando strip club by name and saying [he] want[s] his ‘unethical immoral deals' to come to light.'” (Id. 4 (alterations added)). The Article states Delgado relayed the allegations to a ...


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